Clerk of the Superior Court

*** Electronically Filed ***

M. Bouise, Deputy
11/10/2020 10:58:45 AM
Filing ID 12203887
1 ALLISTER ADEL
MARICOPA COUNTY ATTORNEY
2
By: Thomas P. Liddy (019384)
3 Emily Craiger (021728)
Joseph I. Vigil (018677)
4 Joseph J. Branco (031474)
Joseph E. LaRue (031348)
5 Deputy County Attorneys
liddyt@mcao.maricopa.gov
6 craigere@mcao.maricopa.gov
vigilj@mcao.maricopa.gov
7 brancoj@mcao.maricopa.gov
laruej@mcao.maricopa.gov
8
CIVIL SERVICES DIVISION
9 225 West Madison Street
Phoenix, Arizona 85003
10 Telephone (602) 506-8541
Facsimile (602) 506-4317
11 ca-civilmailbox@mcao.maricopa.gov
12 Attorneys for the Maricopa County Defendants
13 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
14
IN AND FOR THE COUNTY OF MARICOPA
15

16 DONALD J. TRUMP FOR PRESIDENT, NO. CV2020-014248

INC., a federal political committee;
17 REPUBLICAN NATIONAL COMMITTEE,
a federal political party committee; and the MARICOPA COUNTY
18 ARIZONA REPUBLICAN PARTY, a DEFENDANTS’ RESPONSE IN
political party committee, OPPOSITION TO PLAINTIFFS’
19 MOTION TO SEAL
Plaintiffs,
20
v. (Honorable Daniel Kiley)
21
KATIE HOBBS, in her official capacity as
22 the Secretary of State of Arizona; ADRIAN
FONTES, in his official capacity as the
23 Maricopa County Recorder; and JACK
SELLERS, STEVE CHUCRI, BILL
24 GATES, CLINT HICKMAN, AND STEVE
GALLARDO, in their respective official
25 capacities as members of the Maricopa
County Board of Supervisors,
26
Defendants.
27

28
MARICOPA COUNTY
ATTORNEY’S OFFICE
CIVIL SERVICES DIVISION
225 W. MADISON STREET

PHOENIX, ARIZONA 85003

 1 Plaintiffs have moved this Court to seal certain evidence that they would like to offer.

2 Ordinarily in standard election-law cases, challenging election law or candidate signature

3 counts, the parties collaboratively agree on a protective seal because large quantities of

4 documents from the Voter Registration Database must be offered into evidence, often with

5 personally-identifying, protected information, such as mother’s maiden name or social

6 security number. See A.R.S. § 16-168(F) (identifying the personally-identifying information

7 which elections officials cannot make public). In this instance, those good faith collaborative

8 efforts have failed. Here the Maricopa County Defendants are agreeable to allowing

9 Plaintiffs to redact the personally-identifying information protected by A.R.S. § 16-168(F),

10 but Plaintiffs are requesting significantly more than what is protected by statute with no legal

11 or factual basis.

12 Moreover, this case is substantively different from your typical election challenge.

13 Plaintiffs, through their lawsuit and public comments, have sought to undermine the public’s

14 confidence in Arizona’s election in general and Maricopa County’s election in particular.

15 This is not a standard, run-of-the-mill election law challenge, and should not be treated as

16 such. This case goes to the heart of election integrity, and alleges widespread, systemic

17 failure by the Maricopa County Defendants, their employees, and their processes.

18 The public has a right to know that the Maricopa County Defendants conducted the

19 election fairly, and that there was no systemic breakdown as Plaintiffs allege. With no factual

20 basis, Plaintiffs assert that poll workers, “regularly and consistently instructed or advised”

21 voters to “push the green button” without adequate explanation and “up to thousands of

22 qualified electors in Maricopa County attempted to cast ballots at voting centers but had their

23 ballots rejected by the electronic tabulation device.” Complaint ¶¶ 35, 39, 46. And it is not

24 just that they alleged these baseless claims, it is the manner in which they alleged it so widely

25 spread and volitionally to the press, on the internet and on Plaintiffs’ fundraising letters.

26 Because of that it is not in the interest of justice to do this in secret. The public has a right to

27 know how flimsy Plaintiffs’ evidence actually is. The government actors who conduct

28 elections “indisputably ha[ve] a compelling interest in preserving the integrity of its election
MARICOPA COUNTY
ATTORNEY’S OFFICE
1
CIVIL SERVICES DIVISION
225 W. MADISON STREET
PHOENIX, ARIZONA 85003
 1 process.” Arizona Libertarian Party v. Schmerl, 200 Ariz. 486, 491, ¶ 17 (Ct. App. 2001),

2 as amended (Sept. 12, 2001) (quoting Eu v. San Francisco Cty. Democratic Cent. Comm.,

3 489 U.S. 214, 231 (1989). Public confidence in the integrity of the election is likewise an

4 important government interest. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (noting

5 that the “State indisputably has a compelling interest in preserving the integrity of its election

6 process[,]” and, “Confidence in the integrity of our electoral processes is essential to the

7 functioning of our participatory democracy.”); Democratic Nat'l Comm. v. Wisconsin State

8 Legislature, No. 20A66, 2020 WL 6275871, at *2 (U.S. Supreme Court Oct. 26, 2020)

9 (recognizing the danger of actions that would “erod[e] public confidence in electoral

10 outcomes”). Those interests are implicated here because of Plaintiffs’ erroneous and

11 baseless allegations that they continue to circulate to the public.

12 Additionally, Plaintiffs assert that they have video footage taken within vote centers on

13 election day. If so, it appears the videographers violated Arizona law: it is a class 2

14 misdemeanor to take photographs or videos within the seventy-five foot limit around polling

15 locations while voters are present. A.R.S. § 16-515(G), (H). Accordingly, these videos

16 cannot be sealed, because they may be needed by the Attorney General or County Attorney

17 should they choose to prosecute this unlawful behavior. A.R.S. § 16-1021 (giving both

18 elected officers enforcement power). It would counterintuitive to have individuals invade

19 the privacy of voters and violate their right to vote in secret and then use the fruit of that

20 potentially illegal activity to advance a civil case. Moreover, it would be borderline obscene

21 to allow them to do it, then present it to a court in secret.

22 Generally, any party from whom discovery is sought may move for a protective order

23 and the court may, for good cause, enter the protective order. Ariz. R. Civ. P. (“Rule”)

24 26(c)(1). But, before the court may enter the order, the party seeking to keep this evidence

25 from the public has the burden of showing good cause—that is, the burden of showing why

26 the order should be entered. Rule 26(c)(4)(A). “A party asserting good cause bears the

27 burden, for each document it seeks to protect, of showing that specific prejudice or harm will

28 result if no protective order is granted. Broad allegations of harm will not suffice.” Ctr. for
MARICOPA COUNTY
ATTORNEY’S OFFICE
2
CIVIL SERVICES DIVISION
225 W. MADISON STREET
PHOENIX, ARIZONA 85003
 1 Auto Safety v. Goodyear Tire & Rubber Co., 247 Ariz. 567, 571-572, ¶ 20 (Ct. App. 2019)

2 (internal citations omitted). Because the Maricopa County Defendants are agreeable to

3 allowing Plaintiffs to redact the personally-identifying information protected by A.R.S. §

4 16-168(F), such as social security number and driver license number, Plaintiffs cannot make

5 that showing.

6 Plaintiffs chose to bring this lawsuit, calling into question the integrity of the electoral

7 process. The public deserves to see all the evidence so that it can have confidence in this

8 election. Allowing Plaintiffs to seal evidence will erode public confidence, leading to

9 questions of “what is the Court trying to hide?” That result will be bad for the judiciary,

10 harmful to our democracy, and long-term grave damage to the public’s trust in elections.

11 Accordingly, the Maricopa County Defendants urge this Court to deny Plaintiffs motion to

12 seal.

13 RESPECTFULLY submitted this 10th day of November 2020.

14 ALLISTER ADEL
15 MARICOPA COUNTY ATTORNEY

16 BY: /s/Thomas P. Liddy

Thomas P. Liddy
17
Emily Craiger
18 Joseph E. La Rue
Deputy County Attorneys
19 Attorneys for the Maricopa County
20 Defendants

21

22

23

24

25

26
27

28
MARICOPA COUNTY
ATTORNEY’S OFFICE
3
CIVIL SERVICES DIVISION
225 W. MADISON STREET
PHOENIX, ARIZONA 85003
 ORIGINAL of the foregoing e-filed with
1 AZTurboCourt this 10th day of November 2020
with electronic copies e-served to:
2
Honorable Daniel Kiley
3 Rolena Gomez, Judicial Assistant
rolena.gomez@jbazmc.maricopa.gov
4 Alexander Mercer, Bailiff
alexander.mercer@jbazmc.maricopa.gov
5 East Court Building
101 W. Jefferson Street, Courtroom 411
6 Phoenix, Arizona 85003-2202
7 Kory Langhofer
Tom Basille
8 STATECRAFT
649 North Fourth Avenue, First Floor
9 Phoenix, Arizona 85003
kory@statecraftlaw.com
10 tom@statecraftlaw.com
Attorneys for Plaintiffs
11
Roopali H. Desai
12 D. Andrew Gaona
Kristen Yost
13 COPPERSMITH BROCKELMAN PLC
2800 North Central Avenue, Suite 1900
14 Phoenix, Arizona 85004
rdesai@cblawyers.com
15 agaona@cblawyers.com
kyost@cblawyers.com
16 Attorneys for Defendant
Secretary of State
17
Sarah R. Gonski
18 PERKINS COIE LLP
2901 North Central Avenue, Suite 2000
19 Phoenix, Arizona 85012-2788
SGonski@perkinscoie.com
20
Roy Herrera
21 Daniel A. Arellano
BALLARD SPAHR LLP
22 1 East Washington Street, Suite 2300
Phoenix, Arizona 85004-2555
23 HerreraR@ballardspahr.com
ArellanoD@ballardspahr.com
24 Attorneys for Intervenor
Arizona Democratic Party
25
/s/J. Barksdale
26
27

28
MARICOPA COUNTY
ATTORNEY’S OFFICE
4
CIVIL SERVICES DIVISION
225 W. MADISON STREET
PHOENIX, ARIZONA 85003